BLAKE DAWSON WALDRON
L A W Y E R S
INTERNATIONAL SOFT LAW INSTRUMENTS
1.
Introduction
This memorandum examines the extent to which international "soft law" instruments may
have weight in a domestic court.
The memorandum specifically considers the United Nations Standard Minimum Rules for
the Treatment of Prisoners (Standard Minimum Rules), the Body of Principles for the
Protection of all Persons under any Form of Detention or Imprisonment (Body of
Principles) and the Basic Principles for the Treatment of Prisoners (Basic Principles).
2.
Summary of findings
The domestic case law that has considered soft law instruments indicates that:
3.

soft law is a source of international law;

soft law does not give rise to enforceable rights;

courts may have regard to soft law as an indicator of international standards;

soft law forms part of the body of international law to which regard may be had to
clarify an ambiguity in statute; and

soft law (particularly soft law relating to human rights) may be relevant when
considering whether to consider those human rights in the exercise of a discretion.
What is soft law?
Soft law includes UN General Assembly resolutions and other international documents
whose legal status is unclear. It encompasses declarations of principles emanating from an
international conferences, directive recommendations issued by an international
organisation, and model rules or voluntary codes of conduct produced by international and
regional organisations.1
DJ Harris, Cases and Materials on International Law (5th ed, 1998) 65; CM Chinkin, "The Challenge of Soft Law:
Development and Change in International Law" (1989) 38 International and Comparative Law Quarterly 850, 851;
Richard Marlin, "The External Affairs Power and Environmental Protection in Australia" (1996) 24 Federal Law
Review 71. Some commentators have also suggested that treaties, or parts of treaties, may be classified as soft law if,
even though they are in treaty form, they do not give rise to "hard" obligations: CM Chinkin, above, 851.
1
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Soft law is not legally binding and cannot be enforced in court.2 However, soft law may
eventually "harden" into custom. The Universal Declaration of Human Rights is an
example of soft law (in that case, a UN General Assembly resolution) which is now
considered to form part of customary international law.3 Although not giving rise to legally
enforceable obligations, soft law is generally regarded as being an important source of
international law.4
4.
The Standard Minimum Rules, Body of Principles and Basic Principles
Given the extent of material that falls within the definition of soft law, it is likely that some
soft law may be regarded as a more reliable source of international law than others. In our
view, it seems likely that soft law arising from UN General Assembly resolutions or which
has been the subject of comment by treaty bodies is more likely to be given weight by a
domestic court than, for example, a voluntary code of conduct that has not been the subject
of formal consideration by the UN General Assembly or treaty bodies.
The following discussion sets out the background and history to the Standard Minimum
Rules, Body of Principles and Basic Principles and the extent to which they are supported
by General Assembly resolutions or commentary of relevant treaty bodies.
4.1
Standard Minimum Rules
The Standard Minimum Rules were adopted by the UN Congress on the Prevention of
Crime and the Treatment of Offenders on 30 August 1955. Two years later they were
endorsed by the UN Economic and Social Council (ECOSOC).5
In 1971, the General Assembly invited Member States to the Standard Minimum Rules to
implement the rules and consider incorporating them into national legislation.6 In 1975, the
Standard Minimum Rules were referred to in the Declaration on the Protection of Persons
from being subjected to torture and other cruel, inhuman or degrading treatment
(Declaration on Torture).7 Article 1(1) of the Declaration on Torture states:
2
DJ Harris, Cases and Materials on International Law (5th ed, 1998) 65.
DJ Harris, Cases and Materials on International Law (5th ed, 1998) 65; CM Chinkin, "The Challenge of Soft Law:
Development and Change in International Law" (1989) 38 International and Comparative Law Quarterly 850, 860.
3
Richard Marlin, "The External Affairs Power and Environmental Protection in Australia" (1996) 24 Federal Law
Review 71, 77-8.
4
ESC Res 663C, UN Doc E/3048 (1957). See discussion in Matthew Groves, International Law and Prisoners (2001)
UNSW Law Journal 17, 26 (at footnote 53).
5
6
GA Res 2858 (XXVI).
7
GA Res 3452 (XXX) (8 December 1975).
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For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted by or at the instigation of a public official ... It does not
include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent
consistent with the Standard Minimum Rules for the Treatment of Prisoners.
By referring to the Standard Minimum Rules, the General Assembly implicitly reinforced
the importance of the Rules as an international standard.
In 1977, ECOSOC further approved the Standard Minimum Rules in an ECOSOC
resolution.8 In 1984, ECOSOC adopted Procedures for the Effective Implementation of the
Standard Minimum Rules for the Treatment of Prisoners,9 which provides that "States
whose standards for the protection of all persons subjected to any form of detention or
imprisonment fall short of the Standard Minimum Rules for the Treatment of Prisoners
shall adopt the rules."
The UN Human Rights Committee indicated in its General Comment 21 that the Standard
Minimum Rules may be relevant to the determination of the content of the ICCPR. The
HRC stated that:10
States parties are invited to indicate in their reports to what extent they are applying the relevant
United Nations standards applicable to the treatment of prisoners: the Standard Minimum Rules for
the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement
Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1982).
In 1990, the Standard Minimum Rules were recognised by the General Assembly in its
Resolution on the Basic Principles.11 The Resolution recognises that the Standard
Minimum Rules "are of great value and influence in the development of penal policy and
practice" and notes the "concern of previous United Nations congresses … regarding the
obstacles of various kinds that prevent the full implementation of the Standard Minimum
Rules".
In Australia, the Standard Minimum Rules were referred to in the preface to the 1996
edition of the "Standard Guidelines for Corrections in Australia". The Guidelines stated in
the preface that they were based on the Standard Minimum Rules. Further, the Guidelines
stated that:
These guidelines are not intended to be law or to be treated as absolute; they are for guidance.
Whilst ultimately the desirable level of implementation is a political decision based on legislative
8
ESC Res 2076 (LXII) (13 May 1997).
9
ESC Res 47, UN Doc E/Res/1984/47 (1984).
10
General Comment 21, Article 10, UN Doc HRI\GEN\1\Rev.1.
11
GA Res 45/111, UN Doc A/Res/45/111 (14 December 1990).
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provisions, government policies and the availability of resources, the guidelines do provide a base
for protecting human rights in Corrections in Australia.
The Guidelines have most recently been redrafted in 2004. The 2004 version states that the
first edition of the Guidelines (drafted in 1978) was based on the Standard Minimum Rules
and note the current version is the result of a "timely review" of the document, which was
resulted in a change to its structure and presentation. It is of note that the term "human
rights" no longer appears in the Guidelines.
The Standard Minimum Rules were also referred to in the Minister's second reading speech
to the Correction Act 1986 (Vic) on 20 November 1986, where it was noted that "for the
first time in Australia the [Corrections Bill] provides for a legislative description of a
prisoner's rights. The rights in the Bill are for the most part consistent with United Nations
minimum standards for prisoners."12
As will be discussed further below, the Standard Minimum Rules have also been the
subject of some consideration by domestic courts.
4.2
Body of Principles
The Body of Principles is annexed to a UN General Assembly resolution adopted in 1988.13
It is also referred to by the Human Rights Committee in General Comment No 21
(extracted above).
4.3
Basic Principles
The Basic Principles were adopted and proclaimed by the General Assembly in 1990 in
order to articulate the principles underlying the Standard Minimum Rules.14
Although they do not seem to have been the subject of substantial comment in the
international community, they were referred to by Maxwell P in Re Rigoli,15 which is
discussed below.
5.
Consideration of soft law by Australian courts
There are a number of cases in which domestic courts have considered or referred to soft
law. The cases indicate that:

courts may have regard to soft law as an indicator of international standards;
12
As quoted in Binse v Williams [1998] 1 VR 381, 384.
13
GA Res A43/173, UN Doc A/Res/43/173 (1988).
14
GA Res 45/111, UN Doc A/Res/45/111 (14 December 1990).
15
[2005] VSCA 325 (16 December 2005).
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
soft law does not give rise to enforceable rights;

soft law forms part of the body of international law to which regard may be had to
clarify an ambiguity in statute;

soft law (particularly soft law relating to human rights) may be relevant when
considering whether to consider those human rights in the exercise of a discretion.
These points are discussed in more detail below.
5.1
Soft law as an indicator of international standards
In Koowarta v Bjelke-Petersen,16 Stephen J, in determining whether racial discrimination
was an issue that fell within the external affairs power, reviewed the extensive international
literature on the subject and made reference to a number of international standards. His
Honour noted that matters of human rights have:
by virtue of the Charter of the United Nations, become at international law a proper subject for
international action, there followed, in 1958 the Universal Declaration of Human Rights and
thereafter many General Assembly resolutions on human rights and racial discrimination. 17
His Honour referred to the "full catalogue of the various international instruments" set out
in a United Nations publication entitled Human Rights: A Compilation of International
Instruments (1978). He concluded that "even were Australia not a party to the [Convention
on the Elimination of All Forms of Racial Discrimination], this would not necessarily
exclude the topic as a part of its external affairs."18 This suggests that the Stephens J was
prepared to afford significant weight to "soft law" when determining whether racial
discrimination was an issue of international concern and within the scope of the external
affairs power.
Similarly in Commonwealth v Tasmania,19 Murphy J concluded that the protection of world
natural heritage may be a matter of international concern even without the World Heritage
Convention.20 In his discussion of the relevant international law jurisprudence, as well as
referring to a number of other Conventions and Agreements Murphy J referred to a
16
(1982) 153 CLR 168.
17
(1982) 153 CLR 168, 219.
18
(1982) 153 CLR 168, 220.
19
(1958) 158 CLR 1.
(1983) 158 CLR 1, 174-7. This point is discussed in Richard Marlin, "The External Affairs Power and
Environmental Protections in Australia" (1996) 24 Federal Law Review 71.
20
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relevant General Assembly resolution, the Declaration on Principles Covering the Seabed
and Ocean Floor and the Subsoil Thereof Beyond the Limits of the National Jurisdiction.21
More recently, in Vance v State Rail Authority,22 the applicant sought a declaration from the
court that the respondent had indirectly discriminated against her on the ground of her
disability in the manner in which it provided public transport services. The respondent
submitted that the absence of "international concern" about to disability discrimination in
the area of public transport meant that the applicant's claim did not fall within the scope of
s 12(8)(e) of the Disability Discrimination Act 1992 (Cth) and accordingly lacked
jurisdiction. The respondent argued that the fact that the Declaration on the Rights of
Disabled Persons23 was silent on the question of public transport services indicated that
those services are not of international concern. Raphael FM rejected this argument and
pointed to the United Nations Standard Rules on the Equalisation of Opportunities for
Persons with Disabilities,24 in support of the contrary view.25
5.2
Soft law not legally enforceable
In Collins v State of South Australia (Collins),26 Millhouse J in the Supreme Court of South
Australia held that the Standard Minimum Rules are not legally enforceable.
In Collins, the plaintiff brought proceedings against the State of South Australia alleging
breaches of the Standard Minimum Rules and seeking a declaration that the State be bound
by the Standard Minimum Rules. In particular, the plaintiff was concerned with practices
of "doubling up", which require inmates to share a prison cell.
The plaintiff argued that as a signatory to the United Nations Charter, Australia was bound
by the Standard Minimum Rules. Millhouse J, however, found that the Standard Minimum
Rules had not been enacted into domestic legislation. His Honour examined the Standard
Guidelines for Corrections in Australia 1996,27 which were based on the Standard
Minimum Rules. His Honour noted that the Guidelines are qualified by the preface of the
Guidelines which states:
These guidelines are not intended to be law or to be treated as absolute; they are for guidance.
Whilst ultimately the desirable level of implementation is a political decision based on legislative
21
(1983) 158 CLR 1, 175.
22
[2004] FMCA 240.
23
Proclaimed by the UN General Assembly in Res 3447 (XXX) (9 September 1975).
24
GA Res 48/96, UN Doc A/RES/48/96 (20 December 1993).
25
[2004] FMCA 240 [49].
26
[1999] SASC 257.
27
Note that as discussed earlier, these have now been superseded by the Standard Minimum Guidelines 2004.
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provisions, government policies and the availability of resources, the guidelines do provide a base
for protecting human rights in Corrections in Australia.
Millhouse J found that neither the Guidelines, nor the Minimum Rules on which they are
based have the force of law.
5.3
Clarifying ambiguity
In Binse v Williams,28 the Court of Appeal of the Victorian Supreme Court considered an
appeal by a prisoner who had attempted escape from the Acacia high security unit. The
appellant was subsequently placed on a strict security regime, being confined to his cell for
23 hours per day, and only permitted to leave when wearing handcuffs, a body belt and
ankle bracelets. The appellant sought a declaration that the restraints which had been
applied to him were unlawful having regard to article 7 of the ICCPR, article 1 of the
Declaration on Torture and the Standard Minimum Rules.
Charles JA, with whom Tadgell and Callaway JJ agreed, noted that reference was made to
the international instruments not for the purpose of submitting that they bound the
Parliament of Victoria, but that, to the extent that the common law was uncertain or
disputable, or the statutory language ambiguous, scope remained for judicial reference to
international conventions.29
Their Honours did not find any ambiguity in the legislation in question (namely the
Corrections Act 1986 (Vic) and the regulations made under that Act). Therefore, they did
not find it appropriate to consider the international instruments further. However, they did
not rule out having regard to soft law (in that case, either the Declaration on Torture of the
Standard Minimum Rules) when having regard to international law for the purposes of
clarifying ambiguity.30
5.4
Soft law and the exercise of discretion
In R v Smith,31 Bleby J in the Supreme Court of South Australia considered an application
to amend the grounds on which the notice of appeal had been filed by adding the following
ground of appeal:
The sentence and non-parole period are manifestly excessive having regard to the conditions under
which the appellant has commenced serving his sentence, which the appellant submits contravened
28
[1998] 1 VR 381
29
[1998] 1 VR 381, 389.
See discussion of this case in Matthew Groves, "International Law and Australian Prisoners" (2001) 24 New South
Wales Law Journal 17, 55.
30
31
(1998) 98 A Crim R 442.
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relevant international instruments such as the Standard Minimum Guidelines for the Treatment of
Prisoners and the International Covenant of Civil and Political Rights. 32
Bleby J held that the rights of prisoners were governed by the Correctional Services Act
1982 (SA). While international treaties may have a bearing on how prison institutions are
to be administered under that Act and how the provisions of the Act should be interpreted,
there were no submissions in the proceedings that allowed Bleby J to find that the
Correctional Services Act 1982 (SA) had been breached. As such his Honour refused leave
to amend the notice of appeal. He noted, though, that his comments:
should not be taken as reflecting any view as to whether the various articles of the International
Covenant of Civil and Political Rights or the Standard Minimum Guidelines for the Treatment of
Prisoners have been complied with or whether, as a matter of policy, they should be complied with
or, indeed, whether any non-compliance should in general terms have the effect of reducing
sentence.33
This statement suggests that the issue of whether soft law, such as the Standard Minimum
Guidelines, may be taken into consideration as a relevant factor when exercising the
sentencing discretion, is a matter yet to be fully determined by the courts.
5.5
Recent comments regarding soft law
In Re Rigoli,34 which concerned whether the standard of medical care in custody warranted
a grant of bail, Maxwell P noted that:
This Court must be mindful of the international human rights guarantees in relation to the treatment
of prisoners. I will not elaborate them now. Suffice it to say that there is an obligation to ensure
adequate and appropriate medical care for any person in the custody of the State. 35
The footnote to this statement reads as follows:
See, for example, Article 10 of the International Covenant on Civil and Political Rights; United
Nations Committee on Economic, Social and Cultural Rights, General Comment No 14 of the Right
to the Highest Attainable Standard of Health at [34]; The Standard Minimum Rules for the
Treatment of Prisoners (Adopted by the First United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, held at Geneva in 1055, and approved by the Economic and Social
Council by its resolution 663C (XXIV) of 31 July 1957 and 2076 of 13 May 1977) at [22]-[26]; The
Basic Principles for the Treatment of Prisoners (Adopted and proclaimed by General Assembly
Resolution 44/111 of 15 December [1990]) at [9].
6.
Conclusion
32
(1998) 98 A Crim R 442, 443.
33
(1998) 98 A Crim R 442, 448-9.
34
[2005] VSCA 325 (16 December 2005).
35
[2005] VSCA 325 (16 December 2005) [5].
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The case law indicates that the courts are not averse to having regard to "soft" sources of
international law for the purposes of assessing relevant international standards. Further, it
seems that the courts have not ruled out having regard to soft law as part of the broader
body of international law relevant to the interpretation of statutes (where an ambiguity
arises) and, perhaps, exercising the sentencing discretion.
Interestingly, the soft law relating to prisoners rights and in particular, the Standard
Minimum Rules, appears to have been given particular attention in Australian courts. It
may be that the extensive consideration of those principles by ECOSOC, the General
Assembly and the Human Rights Committee in its General Comment 21 lends weight to an
argument that the Standard Minimum Rules are a relevant and useful source of
international law in their own right. Alternatively, a court may be prepared to consider
them as an interpretive tool of assistance when considering relevant provisions of the
ICCPR.
BLAKE DAWSON WALDRON
23 June 2006
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